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Imperial Valley press and the Imperial press. (El Centro, Calif.) 1906-1907, June 16, 1906, Image 1

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Persistent link: https://chroniclingamerica.loc.gov/lccn/sn92070144/1906-06-16/ed-1/seq-1/

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Imperial Valley Press.
/Legal Opinion of Messrs. Stephens & Stephens
[ Attorneys For Imperial Water
7 Company No. 1
/'Neither the Stockholders, Nor Persons Other Than Stockholders
YYY Y Have Ever Made Any Appropriations of Water, or Done
/ Any Act Upon Which a Claim of Right Can Be
Based* Say These Attorneys. .
The discussion of the water rights
"of the people of the Imperial Valley
vhlch has been appearing In the Press
for the" past four weeks has attracted
[widespread attention and President
Glejißon has secured from. Messrs. Ste
phens and Stephens of Los Angeles,
the attorneys for that company, the
following opinion In regard to the mat
ter under discussion. We take pleas
ure In publishing this opinion for the
gentlemen whose names are appended
to it are not only high in the legal
■profession In this State but their opin
ion covers many of the points we have,
endeavored to make plain and largely
substantiates our views In the matter.
It will be observed that their argument
Is put forth to prove, .First, that the
California Development company filed
on the water of the Colorado river un
der the laws of California; second, that
the California Development company
and Mexican company are both one so
far as the transactions with Imperial
Water company No. 1 are concerned;
third, that the California Development
company had a right to contract with
users to deliver water for a certain
price and that upon the performance of
their part of the contract they would be
entitled to the payment agreed upon
and that i the Board of Supervisors
could have no right to set aside the
contract and fix the price at which
water must be delivered by the Cali
fornia Development company to Im
perial Water company No. 1: fourth,
that Imperial Water company No. 1 Is
Incorporated for the purpose of furnish
ing water to Its stockholders ONLY at
cost and that the Board of Supervisors
has no right to set the rates at which
the company shall furnish water to Its
stockholders; fifth, that Water com
>any No. 1 Is not authorized to furnish
vater to others than Its own stockhold
jrs and that' Its stockholders acquire
heir rights only AS STOCKHOLD
ERS of the company and not as users
>f water. For, as Messrs. Stephens
md Stephens themselves say, • neither
he stockholders nor persons other than
tockholders have ever made appropri
tlons of water or done any act upon
/hlch a claim of (water) right can be
>ased." "The stockholder does, not
wn the water until It Is actually dellv
red to him on his land." "Nor has
ny land owner ever owned any wate?
rtilch he could request the water com
any to carry." Sixth, that such
orporatlon as Imperial Water corn
any No. 1 Is not a mutual water corn
any according to section 324 of ,the t
IvII code of this State and that Its
tock Is not appurtenant to the land,
lefore discussing these points further
c present the opinion of the attorneys
id urge our reades to give It a most
ireful reading:
To the Board of Directors of Imperial
Water Company No. 1, Imperial, Cal.
Gentlemen': — It has been reported to
us by Mr. Gleason, the president of
your company, that there is at this time
considerable discussion and difference
of opinion in the Imperial Valley as to
the nature,* source and extent of the
water rights of the settlers of the valley,
and particularly those within the dis
trict of Imperial Water Company No. 1 ;?
and Mr. Gleason has, in view of the
conditions, requested us to furnish your
board with a statement of the conditions
and the rights of the various parties
interested in the waters used within
that district.
The California Development company
(and in speaking of the California De
velopement company in this letter the
use of that name may be construed as
well to include the Mexican company —
because so far as this discussion is con
cerned, the Mexican company and the
California Development company are
one), while we have never seen a copy
of its notice of appropriation, has, we
assume, appropriated under the laws. of
the state of California, certain waters
of the Colorado river, either for the
purpose of sale, rental or distribution,
and has agreed to deliver perpetually a
certain part of those waters to the Im
perial Water Company No. 1.
The constitution of the state of Cali
fornia, section 1, article xiv, provides as
follows : ''
"The use of all water now appropri
ated, or that may hereafter be appro
priated, for sale, rental or distribution,
is hereby declared to be a public use,
and subject to the regulation and con
trol of the state in the manner to be
prescribed by law ; provided, that the
rates or compensation to be collected by
any person, company or corporation in
this state for the use of wafer supplied
to any city and cunty, or city or town,
or the inhabitants thereof, shall be fixed
annually by the boarp of supervisors, or
city and county or city or town council,
or other governing body of such city and
county, or city or town by ordinance or
otherwise, in the manner that other
ordinances or legislative acts or resolu
tions are passed by such body,- and eh all
continue in force for one year and no
It will be observed from this provision
of the constitution that where water is
supplied by a corporation which has
made an appropriation thereof to any
city and county("city and county" as
here used meaning the combined city
and county government, such as the
city of San Francisco) or city or town,
the rates at which such water is sup
plied shall be fixed annually by the
board of supervisors or town council or
other governing body, and a penalty is
fixed for the failure of the board of
supervisors to take such action. The
California Developement company, in
upplying the water to the Imperial
Water Co. No. 1, is not, of course, sup
plying water to any city and county, or
city or town, or the inhabitants thereof,
within the meaning of this provision of
the constitution. The appropriation of
water; by the California Development
company, in the manner in which it
has 'been appropriated, is, however, a
use of water which is subject to regula
tion and control of the state "in the
manner prescribed by law."
The legislature of the state of Cali
fornia in 1880 did prescribe a law for
the purpose of the regulation and con
trol of waters appropriated and used for
irrigation, as distinguished from waters
supplied to cities, this act was super
seded by the act of 18&5, which pro
vides that whenever a petition of not
less than twenty-five inhabitants who
are taxpayers of any county of the state
shall be presented to the board of super
visors thereof to regulate and control
the compensation to be collected by any
appropriated watc, the b/>ard of super
visors, after complying with a certain
procedure for determining the projxjr
maximum rate of charge, may fix the
maximum rate which the corporation
may charge.
Subsequently, by act of 1897, this act
of 1885 was amended as follows :
"Nothing in this act contained (refer
ring to theactof 1885) shall be construed
to prohibit or invalidate any contract
already made, or which shall hereafter
be made, by or with any of the persons
associations or corporations
described in section 2 of this act, relat
ing to the sale, rental or distribution of
water, or to the sate or rental of ease
ments and servitudes of the right to the
flow and use of water; nor to prohibit or
interfere with the vesting of rights un
der any such contract."
There is nothing in the constitution
which renders invalid or in any way af-
fects the contract which has been enter
ed into by the appropriator of water for
sale outside of cities or towns, and the
user, and the amendment of 1897 of the
act of 188J expressly recognizes the val
idity of any contract which has thus
been entered into between the user and
the aporopriator.
This question was directly involved in
the case of the Fresno Irrigation and
Canal company vs. Park, 129 Cal., 437.
This was a case in which the Fresno Ir
rigation and Canal Company, plaintiff
in the suit, appropriated certain waters
of the Kings river for the purpose of
disposing of the waters and collecting
annual rents and charges therefor. The
predecessors in interest of the defendant
entered into an agreement with the
Fresno Canal etc. company under which
they agreed to pay $100 a year for the
use of the water for a given time. The
defendant Park, successor in interest of
the original contractors, refused to pay
the amount-of the charge agreed upon,
and action was brought by the Fresno
Irrigation and Canal company for the
purpose of collecting the amount due
under the contract, it being admitted
that if the predecessor in interest of the
defendant was liable, thedefendant him
self was liable, because of a provision in
the contract making the charge a lien
upon the land.
We now quote portions of the decis
ions of the court in this case, the appel
lant being the defendant and owner of
the land, and the respondent, the Fresno
Irrigation and Canal company :
''The parts of the constitution relied
on by appellants are sections I and 2 of
article XIV. The first clause of section
lis as follows : 'The use of all water
now appropriated, or that may hereafte**
be appropriated, for sale, rental, or dis
tribution, is hereby declared to be a
public use, and subject to the regulation
and control of the state in the manner
to be prescribed by the law.' The rest
of the section applies exclusively to cases
where water is supplied to incorporated
cities or towns, or to that other kind£of
municipality known as a consolidated
'city and county,' so that the parts of
the section other than the first clause
need not be here considered-^-except so
far ac they throw light upon the mean
ing of section 2 and upon certain statu
tory law. Now, there is nothing in the
said first clause of section 1 above quot
ed which, in itself, at all affects the val
idity of the contract in question in the
case at bar. The clause merely declares
that the use of water appropriated for
dirtribution, etc., in a public use, and
that the state may by law regulate it.
"Section 2, which is mainly relied on,
ia as follows : 'The right to collect rates
or compensation for the use of water
supplied to any county, city and county
or town, ur the inhabitants thereof, is a
franchise, and cannot be exercised ex
cept by authority of and in the manner
prescribed by law.' Appellants seem to
lay great stress on the fact that the word
'franchise' Is used ia this section, aa if
'franchise' were a negative word signify
ing prohibition, instead of being, m it is,
an aflirmative word, denoting a grant.
Whatever right a ditch owner had to
sell and distribute water at the time the
constitution was adopted, or afterward,
was not destroyed because it was called
in the constitution a franchise. The
real meaning of 'franchise' ia a privilege
granted— not a right taken away ; but
the word was evidently employed in sec
tion 2 mainly for the purpose of empha
sizing the general declaration in section
1 that the use of water for sale, distribu
tion, etc., is a public use, and with the
notion, no doubt, that calling it a fran
chise would make more clear and cer
tain the intent to subject it to state reg
ulation. In all other respects the mean
ing and effectiveness of section 2 would
be the same if the words 'is a franchise,
and' were not there.
"But the serious questions arising out
of section 2 are as to the meaning of the
words 'cannot be exercised except by
authority of and in the manner prescrib
ed by law.' This is the language upon
which the contention of appellants is ul
timately based, and which is to be ,seen
prominently reiterated through the
pages of their briefs. The contention
really is, although somewhat thinly
veiled, that respondent could notcollect
any rentals, or make any valid contract
about the same, unless the legislature
had passed a law— a 'statute law,' as
they say— expressly giving the power
and prescribing the manner in which it
should be exercised, £ml that the de
murrer should have been susta'ned be
cause such statute was not set up in the
complaint. The contention rests on the
proposition that when the constitution
was adopted in 1879, it immediately
prohibited the owner of a water ditch
from selling any water or making any
contract about furnishing any water, or
collecting any rentals therefor, until the
legislature should enact a statute ex
pressly conferring power to 'do these
things; and, further that the consti u
tion gave the legislature power, by inac
tion, to utterly destroy all property in
ditches and water rightaused for the
distribution and sale of water. Tins
proposition cannot be maintained ; and
we do not think that any authority cited
by appellants goes to the extent of clear
ly and frankly declaring that to be the
law, after a careful consideration of its
full 'significance.
"It was no doubt contemplated that
the main evil to be remedied existed in
A glance at this Map will show
pi — 1
frj \ \
/ 1 \ 't*: V
V^ i \ \
f i'-PBCyu \
♦- Will become the
of the
Has been spent in building and permanent improvements in El
Centro in the last five months. Come and see for yourself. This it)
the town of
El Centro Land Co.
farm Lands for Sale I). H. CHAPLIN,
Insurance OeMralA^nt
Notary Public El Centro, CalKorqla
cities and towns, where it wan feared
that a corporation having practically a
monopoly of furnishing water therein,
would, by exorbitant charges, oppress
the large number of email buyers who
are compelled to have water constantly
for domestic purposes. Therefore, itjiis
provided with great detail in section 1
how compensation for water furnished
within municipalities may be collected
— it being provided, among other things,
that said compensation 'shall be fixed'
annually by the 'governing body' of the
municipality, and that said bodj shall
be 'subject to peremptory process to
compel action in the matter,' and to
'penalties' for not taking action. The
section aleo provides that if the persona
or corporations furnishing water in mu
nicipalities shall collect 'condensation'
therefor otherwise than as established
by the governing body, their franchise
'and waterworks' shall be forfeited to
the municipality. Whether the latter
clause could be enforced is a question
not arising in the case at bar, but it
klkjwh, as other provisions of section 1
hljow, that the convention, when deal
ing with the subject of water, had par
ticularly in view the furnishing of water
within municipalities, and determined
that it would itself handle and legislate
upon that branch of the subject sofaraa
to leave little if any, power to the legis
lature in the premises. But nothing of
the kind appears in the constitution
about water rights and ditches existing ,
and running through mining and agri
cultural districts, etc., outside of munic
ipalities. As to this latter class of prop
erty, with respect to which private con
tracts for compensation for the use of
water had been the rule and apparently
had been satisfactory to both purchasers
and consumers, the convention, appre
hending that there might come evils
outside of municipalities somewhatsim
ilar to thpso feared within tljem, took
the precaution of declaring, so that such^
would be the law beyond question, that .
the use of water appropriated for distri
bution and sale phould be a public use
and subject to the regulation and con
trol of the state. But it left to the leg
islature the power and discretion of reg
ulating the sale of water outside of mu
nicipalities if the time phould come
when, in its wisdom, it thought such
regulation was called for — or to al
low the people to continue to freely con-
Cuutinued on Fifth Page
NO. 10

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